Annual report 2002 - EOI

DECISIONS FOLLOWING AN INQUIRY 101
1.8 Finally, with regard to the Commission’s argument that the judgement of the Court of
First Instance of 23 September 1994 in case T-461/93 has recognised the independence of
the Community funding procedure from the infringement procedure, the Ombudsman
points out that the independence of the two procedures deduced by the Commission from
this case merely concerns the administrative aspects of these procedures. This judgement
does not put into question the principle according to which the projects, which benefit
from Community funding have to comply with Community law. The Ombudsman therefore
considers that it was irrelevant for the Commission to refer to the above Court case
and to the independence of the two procedures in the framework of the present complaint.
1.9 It appears from the above that, during the period from March 1998 until December
1998, when the Commission’s position on the case changed, the Commission has failed to
provide adequate information, because it concealed from the complainant a fundamental
element in the case, namely that by decision E(98)2297 of 27 July 1998 the Commission
had in the meantime decided to fund under the Cohesion Fund the project which was
subject of the complaint. By doing so, the Commission left the complainant in the belief
that it was still investigating the case. The Commission’s failure to provide the
complainant with adequate information about her case constitutes an instance of maladministration.
The Ombudsman therefore makes the critical remark below.
2 The allegation concerning the reasons why the Commission closed the case
2.1 The complainant alleged that the Commission’s decision to close the case was wrong
in law. The Commission has in fact manipulated the matter and has tried to find means to
close the case, as is shown by the reasoning of the final decision of 20 April 1999. It took
the Commission four years to come to the conclusion that the project predated the entry
into force of Directive 85/337/EEC. However, earlier - on 26 March 1997 and on 19 March
1998 - the Commission proposed including this case as a representative example in
proceedings against Greece for failure to comply with Directive 85/337/EEC.
2.2 In its opinion, the Commission observed that in March 1997 it considered that the
project was launched after the entry into force of Directive 85/337/EEC. It concluded that
the realisation works of the project had commenced before the definitive approval of the
environmental conditions of the project, thus violating the Directive. However, having
obtained new information from the Greek authorities, it informed the complainant in April
1999 that it considered that the project in question was described in the decision of the
Prefecture of Preveza n° 667 of 28 February 1986 which predates the entry into force of
the Directive 85/337/EEC. The Commission considered that this decision approved the
site for the installation of the biological treatment plant, because it contained an annex
with the topographical map of the “Varkas” site. It therefore closed the case.
2.3 The Ombudsman has carefully analysed the documents from the file and from the
Commission’s file inspected on 12 September 2001. From the documents at the disposal
of the Ombudsman, it appears that the chronology of the follow-up of the case is as
follows: On 26 March 1997 (first Commission’s reply to the Committee on Petitions), the
Commission considered that the project had been launched after the entry into force of the
Directive 85/337/EEC. Considering that the works of the project had started before the
definitive approval of the environmental impact assessment, the Commission concluded
that the Directive had been violated. The Commission therefore suggested that this case
would be included in a horizontal proceeding against Greece for infringement of the
Directive. For this reason, the Commission also suspended the funding of the project from
the Cohesion Fund.
2.4 On 19 March 1998 (Commission’s second reply to the Committee on Petitions), the
Commission confirmed the violation of Directive 85/337/EEC and postponed all procedures
relating to the funding of the project. The Commission also confirmed that this case